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Guan v Li (No 2)

Guan v Li (No 2)

Case [2022] NSWCA 261 13 December 2022

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Guan v Li (No 2) [2022] NSWCA 261
Hearing dates: 1 December 2022
Date of orders: 13 December 2022
Decision date: 13 December 2022
Before: Ward P at [1]
Gleeson JA at [2]
Griffiths AJA at [54]
Decision:
Summons seeking leave to appeal be dismissed with costs.

Catchwords:
APPEAL – leave to appeal – challenge to freezing order in aid of existing and prospective proceedings in Family Court – judgment creditor seeking to set aside financial agreement between husband and wife and also seeking to set aside settlement deed between wife and husband’s trustee in bankruptcy – Family Law Act, ss 90K(1)(aa) and 90K(3) – whether good arguable case for final relief – whether proposed appeal sufficiently arguable to justify grant of leave

Legislation Cited:
Bankruptcy Act 1966 (Cth), ss 27(1), 58(3)(b)
Family Law Act 1975 (Cth), s 90C, 90K(1)(aa), 90K(3)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5)
Real Property Act 1900 (NSW), s 105A(6)
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Procedure Rules 2005 (NSW), r 25.14

Cases Cited:
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18
Guan v Li [2022] NSWCA 173
House v The King (1936) 55 CLR 499; [1936] HCA 40
Li v Tang [2021] NSWSC 1011
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Ninemia Maritime Corpn v Trave Schiffahrtsgesellschaft mbH und Co KG (“Niedersachsen, The) [1983] 1 WLR 1412; (1984) 1 All ER 398
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category: Principal judgment
Parties: Yanjuan Guan (Applicant)
Weijian Li (Respondent)
Representation:
Counsel:
M Condon SC / G Gee (Applicant)
P D Reynolds (Respondent)
Solicitors:
Auyeung Hencent & Day (Applicant)
J C Legal (Respondent)

File Number(s): 2022/268710
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 834

Date of Decision:

15 June 2022

Before:

Cavanagh J

File Number(s):

2020/73666

Judgment

WARD P: I agree with Gleeson JA.
GLEESON JA: The applicant, Ms Yanjuan Guan (Ms Guan), seeks leave to appeal against the judgment and orders made by Cavanagh J in the Common Law Division on 15 June 2022, relevantly, a freezing order made in aid of existing and prospective proceedings by the respondent, Mr Weijian Li (Mr Li) in the Federal Circuit and Family Court of Australia (the Family Court) and refusing Ms Guan’s motion to remove a writ of levy of property recorded on the title to a property at Oatlands (the Oatlands property): Li v Tang [2022] NSWSC 834.
Ms Guan requires leave as the orders made by the primary judge are interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). An earlier application by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guan v Li (No 2)

Details

AGLC: Guan v Li (No 2) [2022] NSWCA 261
Case: [2022] NSWCA 261
Decision Date: 13 December 2022

CaseChat Overview and Summary

The appeal concerned a challenge to a freezing order made in aid of existing and prospective proceedings in the Family Court. The judgment creditor sought to set aside a financial agreement between the husband and wife, and also to set aside a settlement deed between the wife and the husband’s trustee in bankruptcy. The appeal was brought by the judgment creditor against the wife.

The primary legal issue before the Court of Appeal was whether the judgment creditor had a good arguable case for the final relief it sought, specifically whether the proposed appeal was sufficiently arguable to justify the grant of leave to appeal. This involved considering the prospects of success in setting aside both the financial agreement and the settlement deed under sections 90K(1)(aa) and 90K(3) of the *Family Law Act 1975* (Cth).

The Court of Appeal found that the judgment creditor had not demonstrated a good arguable case for the relief it sought. The Court considered the evidence and submissions regarding the financial agreement and the settlement deed, and concluded that there were significant hurdles to the judgment creditor succeeding in its claims. Consequently, the Court determined that leave to appeal should not be granted.

The summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Guan v Li (No 2) [2022] NSWCA 261

Most Recent Citation

Jaken Properties Australia Pty Limited v Naaman [2023] NSWSC 268

Cases citing this decision · 2 of 2 shown

HBSY Pty Ltd v Lewis
[2024] HCA 35 Para 13

…[14]-[15]; Morris Finance Ltd v Brown (2016) 93 NSWLR 551 at 556 [22]-[25]; Karlsson v Griffith University (2020) 103 NSWLR 131 at 133-135 [10]-[14]; Guan v Li (2022) 405 ALR 701 at 709 [41]. [150]See, eg, Herzfeld and Prince, Interpretation , 3rd ed (2024) at 8-10 [1.50]. [151]Namely, that a matter can only be sai…
Jaken Properties Australia Pty Limited v Naaman
[2023] NSWSC 268 Para 24

…barely capable of serious argument, and yet not necessarily one the judge believes to have a better than 50% chance of success: Guan v Li (No 2) [2022] NSWCA 261 at [30]. Second, the Court must be satisfied, having regard to all the circumstances, that there is a danger that the actual or prospective judgment debt…

View all 2 citing cases →

Cases cited in this decision · 15 of 15 shown

Guan v Li
[2022] NSWCA 173 Para 3

…me Court Act 1970 (NSW), s 101(2)(e). An earlier application by Ms Guan for leave to appeal was dismissed by the Court on 5 September 2022: Guan v Li [2022] NSWCA 173. The Court held that ground 1 of the then draft notice of appeal was incompetent as it raised a matter for determination in the appeal, if leave was…
Li v Tang
[2022] NSWSC 834 Para 2

…d refusing Ms Guan’s motion to remove a writ of levy of property recorded on the title to a property at Oatlands (the Oatlands property): Li v Tang [2022] NSWSC 834.…
Li v Tang
[2021] NSWSC 1011 Para 7

…t 2021, Schmidt AJ entered judgment for Mr Li against Mr Tang in the sum of $1,909,356.39 following delivery of judgment on 12 August 2021: Li v Tang [2021] NSWSC 1011 (the Tang proceedings). Ms Guan was also a defendant in those proceedings but no orders were made against her.…
Moubarak by his Tutor Coorey v Holt
[2019] NSWCA 102 Para 28

…of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]: Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [12].…
PPK Willoughby Pty Ltd v Baird
[2019] NSWCA 48 Para 27

…exercise of judicial discretion. Decisions of this kind are difficult to challenge for sound reasons. As explained in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions “engage the strictures against over-ready appellate interference and the corelative need for ‘added restraint’ associ…
Secretary, Department of Family and Community Services v Smith
[2017] NSWCA 206 Para 28

…justice or ground going beyond something that is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]: Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [12].…
Grainger v Bloomfield & Anor
[2016] HCATrans 61

…[62] As set out in Grainger [ Grainger v Bloomfield & Anor [2015] FamCAFC 221; (2015) 304 FLR 351] there may be some uncertainty as to the extent of the power under s 90K(3) but I accept that the plaintiff has at least a reasonable argument that the power conferred by s 90K(3) would extend to the making of an order s…
Grainger v Bloomfield & Anor
[2015] FamCAFC 221

…[62] As set out in Grainger [ Grainger v Bloomfield & Anor [2015] FamCAFC 221; (2015) 304 FLR 351] there may be some uncertainty as to the extent of the power under s 90K(3) but I accept that the plaintiff has at least a reasonable argument that the power conferred by s 90K(3) would extend to the making of an order s…
Pollard v RRR Corporation Pty Ltd
[2009] NSWCA 110 Para 32

…d should give due allowance for the pressures under which judges deal with the urgent applications before them: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]. Here, the primary judge was required to give a decision under significant time pressure, given the imminent hearing of the application for exten…
Smith v Department of Family and Community Services
[2004] FCA 1428 Para 28

…tion for leave was whether Ms Guan had demonstrated a reasonably clear injustice or ground going beyond something that is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]: Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [12].…
Micallef v ICI Australia Operations Pty Ltd
[2001] NSWCA 274 Para 50

…it in the first place – such as to accept the undertaking – any such conclusion would be immaterial: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].…
Cardile v LED Builders Pty Ltd
[1999] HCA 18 Para 17

…of the Court’s power to make a freezing order against Ms Guan was the inherent jurisdiction (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [57]), and the Uniform Procedure Rules 2005 (NSW) (UCPR), r 25.14. In opposing the freezing order, counsel for Ms Guan relied upon arguments that:…
House v R
[1936] HCA 40 Para 27

…ver-ready appellate interference and the corelative need for ‘added restraint’ associated with House v The King (1936) 55 CLR 499 [at 504-505]; [1936] HCA 40 with the consequence that a ‘heavy burden’ lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedur…
[1983] 1 WLR 1412
[1983] 1 WLR 1412 Para 30

…ave a better than 50 per cent chance of success”: Ninemia Maritime Corpn v Trave Schiffahrtsgesellschaft mbH und Co KG (“The Niedersachsen) [1983] 1 WLR 1412; [1984] 1 All ER 398 at 404. As Mustill J explained at 404, what is required is a preliminary appraisal of the plaintiff’s case, rather than an attempt to have…
House v The King
63 WN 176 Para 27

…ionary decisions “engage the strictures against over-ready appellate interference and the corelative need for ‘added restraint’ associated with House v The King (1936) 55 CLR 499 [at 504-505]; [1936] HCA 40 with the consequence that a ‘heavy burden’ lies on an applicant seeking leave to appeal from a discretionary judgmen…

Legislation cited in this decision · 6

Family Law Act 1975 (Cth)
90C, 90K(1)(aa), 90K(3) 4 mentions (from Para 3)
Bankruptcy Act 1966 (Cth)
27(1), 58(3)(b) 3 mentions (from Para 11)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
7(5) 2 mentions (from Para 3)
Real Property Act 1900 (NSW)
105A(6) 2 mentions (from Para 21)
Supreme Court Act 1970 (NSW)
101(2)(e) 1 mention (from Para 3)
Uniform Procedure Rules 2005 (NSW)
25.14 1 mention (from Para 17)

Medium Neutral Citation:	Guan v Li (No 2) [2022] NSWCA 261
Hearing dates:	1 December 2022
Date of orders:	13 December 2022
Decision date:	13 December 2022
Before:	Ward P at [1] Gleeson JA at [2] Griffiths AJA at [54]
Decision:	Summons seeking leave to appeal be dismissed with costs.
Catchwords:	APPEAL – leave to appeal – challenge to freezing order in aid of existing and prospective proceedings in Family Court – judgment creditor seeking to set aside financial agreement between husband and wife and also seeking to set aside settlement deed between wife and husband’s trustee in bankruptcy – Family Law Act, ss 90K(1)(aa) and 90K(3) – whether good arguable case for final relief – whether proposed appeal sufficiently arguable to justify grant of leave
Legislation Cited:	Bankruptcy Act 1966 (Cth), ss 27(1), 58(3)(b) Family Law Act 1975 (Cth), s 90C, 90K(1)(aa), 90K(3) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5) Real Property Act 1900 (NSW), s 105A(6) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Procedure Rules 2005 (NSW), r 25.14
Cases Cited:	Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 Guan v Li [2022] NSWCA 173 House v The King (1936) 55 CLR 499; [1936] HCA 40 Li v Tang [2021] NSWSC 1011 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Ninemia Maritime Corpn v Trave Schiffahrtsgesellschaft mbH und Co KG (“Niedersachsen, The) [1983] 1 WLR 1412; (1984) 1 All ER 398 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category:	Principal judgment
Parties:	Yanjuan Guan (Applicant) Weijian Li (Respondent)
Representation:	Counsel: M Condon SC / G Gee (Applicant) P D Reynolds (Respondent) Solicitors: Auyeung Hencent & Day (Applicant) J C Legal (Respondent)
File Number(s):	2022/268710
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2022] NSWSC 834 Date of Decision: 15 June 2022 Before: Cavanagh J File Number(s): 2020/73666